Richard Lathan v. Gary Swarthout

September 15, 2011

RICHARD LATHAN, PETITIONER,v.GARY SWARTHOUT, RESPONDENT.

ORDER

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. He challenges the decision of the California Board of Parole Hearings ("Board") to deny him parole at a parole consideration hearing held on July 31, 2009. Pet. at 6.*fn1 He claims that the Board's 2009 decision was unconstitutional because it relied upon his commitment offense to support a finding that petitioner was currently dangerous, and because it denied parole for seven years pursuant to Marsy's Law, in violation of the Ex Post Facto Clause. Id. at 6, 13-14. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to petitioner's consent. See E.D. Cal. Local Rules, Appx. A, at (k)(4).

Petitioner seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit. Therefore, the request will be granted. See 28 U.S.C. § 1915(a). However, for the reasons explained below, the court finds that petitioner's application for a writ of habeas corpus must be dismissed. See Rule 4, Rules Governing § 2254 Cases (requiring summary dismissal of habeas petition if, upon initial review by a judge, it plainly appears "that the petitioner is not entitled to relief in the district court").

I. Due Process Claim

Petitioner contends that the Board's decision to deny him parole violated his right to equal protection and his Sixth Amendment right to trial by jury, but petitioner has not alleged facts to support such grounds for relief. Aside from the ex post facto claim, discussed below, petitioner's challenge to the Board's decision is that the Board "used the commitment offense circumstances for a determination of [petitioner's] current dangerousness to [the] public if released . . . ." Pet. at 13. Liberally construed, the petition alleges that the Board's decision violated petitioner's right to due process because it was not supported by some evidence of petitioner's current dangerousness.

Under California law, a prisoner is entitled to release unless there is "some evidence" of his or her current dangerousness. In re Lawrence, 44 Cal. 4th 1181, 1205-06, 1210 (2008); In re Rosenkrantz, 29 Cal. 4th 696, 651-53 (2002). According to the United States Supreme Court, however, federal habeas review of a parole denial is limited to the narrow question of whether a petitioner has received "fair procedures." Swarthout v. Cooke, 526 U.S. __ (2011), No. 10-333, 2011 WL 197627, at *2 (Jan. 24, 2011). In other words, a federal court may only review whether a petitioner has received a meaningful opportunity to be heard and a statement of reasons why parole was denied. Id.at **2-3 (federal due process satisfied where petitioners were "allowed to speak at their parole hearings and to contest the evidence against them, were afforded access to their records in advance, and were notified as to the reasons why parole was denied"). Thus, this court may not review whether the Board correctly applied California's "some evidence" standard. Id. at *2.

The record reflects that petitioner was given the opportunity to be heard at his 2009 parole suitability hearing and received a statement of the reasons why parole was denied. See Dckt. No. 1 at 19-101. This is all that due process requires. Swarthout, 2011 WL 197627, at **2-3. Accordingly, petitioner is not entitled to relief on this claim.

II. Ex Post Facto Claim

Petitioner claims the Board violated the Ex Post Facto Clause by denying him parole for seven years pursuant to Marsy's Law. As discussed below, the court finds this claim should be dismissed because petitioner is already a member of a class action -- Gilman v. Fisher, No. Civ. S-05-830 LKK GGH -- which addresses this issue.*fn2

Marsy's Law, approved by California voters in November 2008, amended California's law governing parole deferral periods. See Gilman v. Davis, 690 F. Supp.2d 1105, 1109-13 (E.D. Cal. 2010) (granting plaintiffs' motion for preliminary injunction to enjoin enforcement of Marsy's Law, to the extent it amended former California Penal Code section 3041.5(b)(2)(A)), rev'd sub nom. Gilman v. Schwarzenegger, 638 F.3d 1101 (9th Cir. 2011). Prior to Marsy's Law, the Board deferred subsequent parole suitability hearings to indeterminately-sentenced inmates for one year unless the Board determined it was unreasonable to expect that parole could be granted the following year, in which case the Board could defer the subsequent parole suitability hearing for up to five years. Cal. Pen. Code § 3041.5(b)(2) (2008). Marsy's Law, which applied to petitioner at his 2009 parole suitability hearing, amended section 3041.5(b)(2) to impose a minimum deferral period of three years, and to authorize the Board's deferral of a subsequent parole hearing for up to seven, ten, or fifteen years. Id. § 3041.5(b)(3) (2010).

The Constitution provides that "No State shall . . . pass any . . . ex post facto Law." U.S. Const. art. I, § 10. A law violates the Ex Post Facto Clause of the United States Constitution if it: (1) punishes as criminal an act that was not criminal when it was committed; (2) makes a crime's punishment greater than when the crime was committed; or (3) deprives a person of a defense available at the time the crime was committed. Collins v. Youngblood, 497 U.S. 37, 52 (1990). The Ex Post Facto Clause "is aimed at laws that retroactively alter the definition of crimes or increase the punishment for criminal acts." Himes v. Thompson, 336 F.3d 848, 854 (9th Cir. 2003) (quoting Souch v. Schaivo, 289 F.3d 616, 620 (9th Cir. 2002)). See also Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 504 (1995). The Ex Post Facto Clause is also violated if: (1) state regulations have been applied retroactively; and (2) the new regulations have created a "sufficient risk" of increasing the punishment attached to the crimes. Himes, 336 F.3d at 854. The retroactive application of a change in state parole procedures violates ex post facto only if there exists a "significant risk" that such application will increase the punishment for the crime. See Garner v. Jones, 529 U.S. 244, 259 (2000).

In a class action for injunctive relief certified under Rule 23(b)(2) of the Federal Rules of Civil Procedure, a court may, but is not required, to permit members to opt-out of the suit. Crawford v. Honig, 37 F.3d 485, 487 n.2 (9th Cir. 1994). In certifying the Gilman class, the district court found that plaintiffs satisfied Rule 23(a) and Rule 23(b)(2)'s requirement that "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." See Gilman v. Fisher, No. Civ. S-05-830 LKK GGH ("Gilman"), Dckt. No. 182 (March 4, 2009 Order certifying class pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure), Dckt. No. 257 (June 3, 2010 Ninth Circuit Court of Appeals Memorandum affirming district court's order certifying class). According to the district court in Gilman, its members "may not maintain a separate, individual suit for equitable relief involving the same subject matter of the class action." Gilman, Dckt. No. 296 (December 10, 2010 Order) at 2; see also Dckt. No. 278 (October 1, 2010 Order), Dckt. No. 276 (September 28, 2010 Order), Dckt. No. 274 (September 23, 2010 Order).

One of the plaintiffs' claims in Gilman is that Marsy's Law's amendments to section 3041.5(b)(2) regarding parole deferral periods violates the Ex Post Facto Clause because "when applied retroactively, [they] create a significant risk of increasing the measure of punishment attached to the original crime." Gilman, Dckt. No. 154-1 (Fourth Amended/Supplemental Complaint), Dckt. No. 183 (March 4, 2009 Order granting plaintiff's motion for leave to file Fourth Amended/Supplemental Complaint). With respect to this ex post facto claim, the class in Gilman is comprised of "all California state prisoners who have been sentenced to a life term with possibility of parole for an offense that occurred before November 4, 2008." Gilman, Dckt. No. 340 (April 25, 2011 Order amending definition of class). The Gilman plaintiffs seek declaratory and injunctive relief, including a permanent injunction enjoining the Board from enforcing Marsy's Law's amendments to section 3041.5(b) and requiring that the Board conduct a new parole consideration hearing for each member of the class. Gilman, Dckt. No. 154-1 (Fourth Amended/Supplemental Complaint) at 14.

Here, petitioner is a California state prisoner who was sentenced to a life term with the possibility of parole for an offense that occurred before November 4, 2008. Dckt. No. 1 at 21. Plaintiff is therefore is a member of the Gilman class. Although petitioner seeks a writ of habeas corpus, success on his ex post facto claim would not entitle petitioner to release on parole. Because the ex post facto claim concerns only the timing of petitioner's next suitability hearing, success on this claim would not necessarily result in determinations that petitioner is suitable for parole and should be released from custody. Rather, petitioner's equitable relief would be limited to an order directing the Board to conduct a new parole suitability hearing and enjoining the Board from enforcing any unconstitutional provisions of Marsy's Law. This is the same relief petitioner would be entitled to as a member of the Gilman class action. See Gilman, Dckt. No. 154-1 (Fourth Amended/Supplemental Complaint) at 14. Here, petitioner's only requested relief is to receive a new parole suitability hearing. Dckt. No. 1 at 14.

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